Legal Ethics Opinion 1495
Misconduct: Requesting Issuance of Unenforceable Subpoena on an
Out-Of-State Individual
You have presented a hypothetical situation in which an attorney,
in divorce litigation, requests issuance of a subpoena ducestecum addressed to a resident of North Carolina. The subpoena is
signed by the clerk of court and returned to the attorney who
apparently mails it to the nonresident. You state that there is
no proof of service of the subpoena in the court file. When
records are not produced as requested, the attorney files a
Request for an Order to Show Cause and mails a copy of the
request to the subpoenaed nonresident. You state that the
nonresident fears imprisonment and thus complies with the
subpoena. Further, you state that the attorney is aware that a
Virginia subpoena is unenforceable in another state because a
North Carolina bank had earlier refused to release bank records
requested by a similar subpoena.
You have asked the committee to opine, under the facts of the
inquiry: (1) whether it is permissible for a Virginia attorney to
request a Virginia court to issue a subpoena duces tecum to
obtain documents from an out-of-state individual, knowing that
such such subpoena is not enforceable; (2) whether it is ethical
for the Virginia attorney to request a show cause summons or
contempt order threatening possible imprisonment against a
nonresident who does not respond to the subpoena duces tecum,
knowing such individual cannot be held in contempt; and (3)
whether it is ethical for the attorney to request jail time
considerably in excess of the maximum ten day sentence permitted
under Rule 4:9(d) of the Supreme Court of Virginia and Virginia
Code 18.2-456 and 18.2-457.
The appropriate and controlling Disciplinary Rule related to your
inquiry is DR l-l02(A)(4) which prohibits a lawyer from engaging
in conduct involving dishonesty, fraud, deceit, or
misrepresentation which reflects adversely on a lawyer's fitness
to practice law.
1. The committee has previously opined that it is not
improper for an attorney to sue on a cause of action
previously dismissed by the same court; to fail to
inform the court as to the previous suit when not
specifically asked by the court for such information;
or to file suit on an overdue account after the statute
of limitations has run. See LEOs #l224, 49l.
In the facts you provide, the committee is of the
opinion that it would be improper and violative of DR
l-l02(A)(4) for a Virginia attorney to request a
Virginia court to issue a subpoena duces tecum to
obtain documents from an out-of-state individual,
knowing that such such subpoena is not enforceable,
unless the subject of the subpoena has agreed to accept
service.
2. The committee is of the further opinion that it would
be similarly improper to request a show cause summons
or contempt order against the nonresident for failure
to comply with the subpoena duces tecum.
3. Since the committee finds that both the initial
issuance of a subpoena duces tecum and the subsequent
request for a show cause order in the circumstances you
present would be improper, the committee is of the
opinion that a subsequent request for jail time
resulting from the out-of-state's lack of response to
both would also be improper and violative of DR
l-l02(A)(4).
Committee Opinion
November 5, 1992